10. Trade Unions and Employers Associations

Brief Description of Employees’ and Employers’ Associations

The Spanish Constitution grants unions the authority to promote and defend the workers’ economic interests. It also empowers them to represent workers in collective bargaining and to participate in the preliminary mandatory conciliation steps, before disputes can be presented to governmental conciliation agencies.

Rights and Importance of Trade Unions

Freedom of association and representation are fundamental rights in the Spanish Constitution. All employees (except senior executives, i.e., general managers) are represented by the elected representatives. There is no distinction between blue and white-collar representatives. It is the employees’ duty to start the process of elections, and thus, the employer has no obligation to promote them. Freedom of association and representation includes the following rights:

• right to associate freely with any of the unions; this is a right, not an obligation;
• right to establish unions without prior authorisation, both nationally and internationally;
• right to choose employee representatives;
• right to participate in union activities;
• right to keep association preferences private and not communicate them to the employer.

Types of Representation

There are two types of employees’ representation: individual delegates and works councils. Individual delegates represent workers in companies or worksites having up to fifty (50) workers. Where the company or the worksite has more than fifty (50) workers, workers will appoint a works council formed by the following number of members:

Number of Representatives

• 50 to 100 workers: 5 members
• 101 to 250 workers: 9 members
• 251 to 500 workers: 13 members
• 501 to 750 workers: 17 members
• 751 to 1000 workers: 21 members
• more than 1000 workers: 2 members for every 1000 workers, up to 75 members.

Appointment of Representatives

The workers choose representatives when elections are called. The vote is free and secret.

Tasks and Obligations of Representatives

Works councils and delegates are entitled to preside over and organise assemblies, take legal and administrative action and raise legal disputes. They are also entitled to overview and control the company’s fulfilment of its obligations regarding safety, security, and any other regulations in force.

Works councils and delegates are entitled to receive information on the company’s performance, the market and particularly on employment. They are entitled to consultation in situations affecting a number of employees exceeding the threshold (around 10% of workforce), namely relocation of a worksite, change of employment terms, collective redundancy or mass layoffs, mergers, etc.

Employees’ Representation in Management

Due to the principle of mutual trust between the employer and senior executives, the latter cannot be eligible nor participate as electors in the employees’ representation for they (senior executives) cannot defend or represent opposite interests to those of the company.

Other Types of Employee Representative Bodies

The most basic form of collective representation in Spanish employment law is known as “Personnel Delegate” or “Staff Representatives”. Representation of the workers in a company or work centre with less than fifty and more than ten workers shall be entrusted to the staff representatives. There may also be a staff representative in companies or centres that employ between six and ten workers, if so decided by the majority workers. Through a free, individual, secret and direct suffrage, the workers shall choose their staff representatives as follows: up to thirty workers: one; between thirty-one and forty-nine: three. The staff representatives shall jointly exercise vis-à-vis the employer the representation to which they were elected, and shall hold the same powers established for the works councils.

The employees are entitled to participate in the company on issues related to health and safety in the workplace. Health and Safety representatives are elected by and among staff representatives in the field of the respective bodies of representation, and specialise in health and safety matters at work. Along with this, the Health and Safety Committee is established as the joint body together with representatives of the employer being involved in the same tasks.

The works council is the representative and collegiate body of all the workers employed by the company or work centre in charge of defending their interests; it shall be established in each work centre with a register of fifty or more workers.

A company that holds two or more work centres in the same province or neighbouring municipalities, which register less than fifty workers but which, overall, total this amount, shall have a joint works council. If certain centres have fifty workers and others in the same province do not, the former shall have their own works councils and another council shall be established with the remainder.

A CBA must establish the incorporation and operation of a Joint Council (“Comité Intercentros”) up to a maximum of thirteen members, to be appointed from amongst the members of the various councils. When incorporating a Joint Council, the trade union proportionality according to the election results taken as a whole shall be maintained. Such Joint Councils may not take on other duties than those expressly granted in the CBA whereby their incorporation is agreed.

Number of Representatives

The number of members of the works council shall be determined according to the following scale:

• between 50 and 100 workers: 5 members
• between 101 and 250 workers: 9 members
• between 251 and 500 workers: 13 members
• between 501 and 750 workers: 17 members
• between 751 and 1000 workers: 21 members
• 1000 and above: 2 per every thousand or fraction, up to a maximum of 75 members.

Appointment of Representatives

The collective representation structures are at the request of employees. There is no obligation to put in place employees’ representatives. The election process may be promoted by:

• the most representative unions of the sector;
• trade union organisations with at least a 10% representation in the company;
• employees by majority agreement.

The works councils or work centre shall choose from amongst their members a chairman and secretary of the council, and shall draw up their own procedural regulations, which must comply with the law, a copy of which shall be sent to the labour authority, for its records, and to the company. All councils shall meet every two months or whenever this is requested by a third of its members or a third of the workers represented.

Tasks and Obligations of Representatives

A works council shall have the following powers, although it is understood that also staff representatives will be entitled to the same rights:

• to receive information, provided at least on a quarterly basis, on the general performance of the economic sector to which the company belongs, on the current production and sales situation of the company, on the production and performance forecasts for company employment, including the employer’s forecasts on the execution of new contracts, indicating their number and the forms and types of contracts to be used, including part-time contracts, the working of extra hours by part-time workers and sub-contracting.

It shall also be entitled to receive information, at least each year, on the company’s application of the right of equal treatment and opportunities between men and women, to include data on the ratio of women and men in the various professional categories and, if applicable, any measures adopted to encourage the equal treatment of men and women in the company and the application of any equal treatment plan.

• to receive information on the balance sheet, profit and loss account, annual report and, if the company is a corporation based on shares or participations, of any other documents provided to the members, in the same conditions applicable thereto.
• to receive information of the employment contracts and the notification of any renewals and contractual repudiations.
• to receive information on the very serious sanctions issued to employees.
• to be informed and consulted about all company decisions that may imply relevant changes in terms of work organisations and contracts, and also concerning staff reduction plans.

The works council is entitled to issue a report before the employer executes any decisions taken on the following matters:

• staff restructuring and total or partial, final or provisional removals of staff;
• a reduction in the working schedule;
• total or partial transfer of employees to other premises;
• merging operations of the company that may imply any change whatsoever of the number of employees;
• plans for professional training provided by the company;
• implementation or review of work arrangement and control systems;
• a study of working hours, a premium or incentives plan and the appraisal of work posts.

To carry out the following tasks:

• to ensure the fulfilment of current labour, social security and employment rules, including any other agreements, conditions and terms currently applied by the company, filing any legal actions that are necessary before the employer and the competent bodies or courts.
• to supervise and control all safety and hygiene conditions in the execution of work at the company.
• to ensure that the principle of equal treatment and opportunities between men and women is upheld and applied.
• to participate, as determined in a CBA, in the management of any social projects established in the company to the benefit of the workers or their relatives.
• to cooperate with the company management to procure the necessary measures to ensure the maintenance and increase in productivity levels, according to what is agreed in the CBAs.
• to inform the represented workers of all the issues and matters described in part 1. of this section, if they directly or indirectly affect employment relations.
• to collaborate with the company’s management in establishing and starting up conciliation measures.

Any reports to be issued by the Council beyond the powers recognised above, must be drawn up within a term of fifteen days.